Last fall, Michael Dorf of Columbia Law School wrote an article on FindLaw, aimed at incoming students, entitled “The Five Minute Law School.” In it he attempted to summarize in a very brief compass what students would study in the first year. Dorf took his inspiration for the article from two rather divergent sources: the pre-law school summer courses that I guess are being sold to lots of students these days and Father Guido Sarducci’s Five Minute University. The former I know less about than I ought to; the latter I was completely ignorant of. But now I see that it (like virtually everything else) is available on the web. Here are some great excerpts:

I find that education, it don't matter where you go to school, Italy, America,
Brazil, all are the same -- it's all this memorization and it don't matter how
long you can remember anything just so you can parrot it back for the
tests.

I got this idea for a school I would like to start, something
called the Five Minute University. The idea is that in five minutes you
learn what the average college graduate remembers five years after he or she is
out of school. . . .

You know, like in college you have to take a foreign language.
Well, at the Five Minute University you can have your choice, any language you
want you can take it. Say if you want to take Spanish, what I teach you is
"¿Como está usted?" that means, "how are you", and the answer is "muy bien,"
means "very well." And believe me, if you took two years of college Spanish,
five years after you are out of school "¿Como está usted?" and "muy bien" about
all you're gonna remember. . . .

Theology, I'm gonna have a theology
department, you know, since I'm a priest, and what you have to learn in theology
is the answer to the question, "Where is God?", and the answer is, "God is
everywhere." Why? "Because he likes you." That's kind of a combination of the
Disney and Roman Catholic philosophy. It's just perfect for the late 70s or
early 80s you know, just perfect.. . .

Great skit. I love it--it's worth reading in its (blessedly short) entirety. And you know what, it’s from the days when Saturday Night Live skits were the right length. Now that was entertainment.

(Much like SNL, I think my teaching’s gone downhill in recent years).

Professor Dorf did a very nice job for a couple of subjects, like torts and contracts. Of torts he had this to say:

The law of torts can be reduced to three principles. First, as used in the
first-year law-school curriculum, a "tort" is not a pastry. If someone had
pointed this important principle out to me before I started law school, I might
not have gained those ten pounds in the first couple of weeks. "Tort" literally
means "injury" or "wrong," and, as a technical matter, means the breach of a
legal duty imposed by law (rather than voluntarily undertaken by contract).
That's about a third of the course.

Second, in order for a plaintiff to win her torts case, she must prove not
only that the defendant committed a legal wrong against her, but also that the
wrong caused an injury to the plaintiff. As anybody who has ever read any
science fiction knows, in some sense, almost every past event caused every
subsequent event. If you go back in time millions of years and kill a butterfly,
you unleash a chain of events culminating in your own disappearance in a puff of
logic.

But the law does not traffic in such absurdities, so you can't sue for every
past legal wrong that anybody committed. For example, suppose Joe is driving
down a divided highway when his attention is drawn to the wreckage of an
accident that occurred when Dave, who was driving drunk in the other direction,
plowed his car into the guard rail. As a result, Joe takes his eyes off the road
for a second, and when he looks back, it is too late for him to avoid
rear-ending a car driven by Paul, who has also slowed his car to rubber-neck.
Can Paul successfully sue Dave? (Most characters in law school examples have
names beginning with the same letter as the name of the parties they become.
Thus, "P" is for Paul and plaintiff, while "D" is for Dave and defendant.
Amazingly, this phenomenon holds true in real life as well. Con!)

No, Paul cannot bring a successful claim against Dave. To be sure, absent
Dave's wrongful drunk driving, Paul would have escaped injury, but the courts
will say that the causal chain was too attenuated to hold Dave responsible. In
torts jargon, we say that Dave's drunk driving was not the "proximate cause" of
Paul's injury.

How close a relationship must there be between cause and effect for the
former to count as the proximate cause of the latter? The law does not attempt
to quantify the answer; it's a matter of judgment and common sense. That drives
law students nuts. But if you remember that "proximate cause" is simply a fancy
way of saying "use your common sense," you'll spend less time trying to
reconcile all the nonsense written about proximate cause, which will leave you
more time to sing the praises of your professors on your blog.

Speaking of time, the essentials of torts don't take much time to teach or
learn. Accordingly, many torts professor fill most of their class time teaching
something called "law and economics." As you would expect from the term, the
discipline applies economic analysis to law. In practice, law and economics can
yield some pretty odd conclusions. For example, if it would be cheaper for
people who live downwind from a pig farm to purchase and wear gas masks, than
for the pig farmer to prevent noxious fumes from escaping his farm, then, some
law and economics scholars would say, the farmer should not be held liable for
the tort of nuisance.

But when it comes to property law, Professor Dorf trails off into a short (and to us property profs, a not very funny) joke:

Property law is more of a hazing ritual than an actual subject.
Typical property classes teach students the fine distinctions among
different forms of ownership of land in medieval England, such as the
"fee tail" and the "fee simple determinable," neither of which, alas,
has anything to do with collecting a legal fee. Students forget these
distinctions within a few seconds of completing their property law
final exams, which is unfortunate, because then they have to learn them
all over again for the bar exam. Only after successfully completing the
bar exam, is it safe to forget the distinctions permanently.

So I set about wondering what would a more serious yet short summary
of the class be? What are the key elements of property? Well, some
key themes (for the property rights side) include the rights to
exclusion of others, of use, and of alienation. However, in a lot of casses, there are the
overlapping interests that non-owners have in other people’s
property–easements for access and servitudes to restrict neighbors’ use
of their property, for instance. Often conflicts arise between rights of
exclusion (and the injunctions that protect those rights) and
considerations of reasonableness, such as when one neighbor infringes
on another’s property. Some of property is about reaching a reasonable accommodation
between competing interests--between owners to use their land (for
instance, for a cement plant) and neighbors. As courts try to balance
those rights, they take the utility of each competing use into
consideration.

Some themes can be captured (ha, ha) well by talking about Johnson
v. McIntosh,
a case where Chief Justice Marshall validated the federal and state
government's right to grant land titles over the titles given by Native
Americans: we acquire property rights by long-term use and by getting
others to respect those customs. And our customs are that we respect
those long-term uses and allow those long-term users to have what we
call a “property right.” Those users can then
sell or give away their interests and we will not go back and try to
redistribute property. Whatever distribution of property existed at
the beginning of time continues, unless the property is sold or given
away. Or you could make the same point by talking about The Antelope.

This explains why you can acquire property by adverse possession,
which requires that you occupy someone else's property and treating it
like your own for a lengthy period. It also helps to explain
servitudes, which give neighbors a right to restrict onwers' use of
land and easements, which give neighbors a right to use owners' land.
And then there's the takings muddle. We need a five minute class just
on that topic--but again, there are some guide posts to when a
government regulation "goes too far"--when it interferes with the
expectations that owners have of what they can do with their property.
Some of those involve questions of whether all economically viable use
of the property is being taken away or with whether the government is
imposing physically on the property. But we're also interested in what
is termed "investment backed interests" in property. As with nuisance,
we think that the money you paid for a property has some bearing on how
much the property may be regulated.

Reasonableness in use of property is one key theme running
throughout
the course; limitations on what owners can do with their property is
another. And we probably ought to say something about property rules
(which allow you to get an injunction to prohibit others from
interferring with your property) and liability rules (which allows
someone who's interferring with your property to just pay money and keep
infringing). Check out Larry Solum's excellent summary here.

Anyway, this becomes rather complex rather quickly–but I’m
interested in ways we can convey key themes in a small compass. I
think that can help students immensely in learning and categorizing the
material. This five minute class--well, ok, is should run to more time
than that--needs a lot of refinement. I'm going to work on this a
little. And believe me, we need to make this stuff accessible--because
a few weeks after the course is over, they won't remember much about
the intricacies of apportioning rights and liabilities among cotenants.

Endnote: The photograph of a class is courtesy of my friends at Indiana University--Indianapolis School of Law.

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Comments

Hi,

This year I tried a new way to introduce the course. First, I had the students write (and email to me) brief answers to essay questions BEFORE the first class. The essay questions included: What is property? What is not property? How do we know someone owns property? What rights does ownership of property give you? Are there any duties associated with property ownership? Why do we as a society recognize and protect property rights?

I do this to spur/plant questioning, to give them a sense that they already know a lot about property law, and to set up the first class. (It's amazing how much they do know and how consistent many of their answers are.)

Then in the first class meeting I use their answers to connect and distinguish Property law to the other courses that they have already taken, to build on their own experiences as people involved in many different kinds of property relationships, and to lay out a framework of critical questions that we can ask about any property relationship within which I fit the course topics we'll study.

I think that it worked well and I'm happy to share it in more detail if anyone is interested.